Opinion
November 10, 1986
Appeal from the Niagara County Court, Hannigan, J.
Present — Callahan, J.P., Denman, Pine, Balio and Lawton, JJ.
Judgment unanimously modified as a matter of discretion in the interest of justice, by vacating defendant's conviction for forgery in the second degree and by adjudicating defendant a youthful offender and otherwise judgment affirmed and defendant remanded to Niagara County Court for sentencing. Memorandum: As part of a plea-bargaining agreement, defendant pleaded guilty to one count of forgery in the second degree in full satisfaction of two indictments. At the time of the plea, he fully admitted that he took his uncle's Sears credit card without his uncle's knowledge or permission and used it to purchase specified items. He denied, however, that he had anything to do with the purse-snatching charge in the other indictment which was dismissed as part of the plea bargain. The court summarily denied defendant's application for youthful offender status and sentenced him to an indeterminate term of 2 1/3 to 7 years. On appeal, defendant asserts that the sentence was harsh and excessive as he had never been arrested before and because the crime to which he pleaded guilty was a nonviolent offense. We conclude that a jail sentence was appropriate under the circumstances but that defendant should have been accorded youthful offender treatment. Defendant was 18 years of age at the time of the commission of the offense for which he was convicted. He had never previously been arrested. Considering all the circumstances, the denial of defendant's application for youthful offender status was an improvident exercise of discretion (see, People v Noel, 106 A.D.2d 854; People v Kerr, 43 A.D.2d 895).